Ag in the Courtroom

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.

Are State GM Food Labeling Laws Constitutional?

Mar 22, 2013

Opponents of genetically modified foods have tried for years to compel FDA to mandate labels on all foods that contain genetically modified ingredients. FDA has turned down these requests on the basis that GM foods are safe and are not materially different from conventional crops. Recognizing that there is more than one way to skin a cat, anti-GM groups have turned to state houses to seek state-level legislation that would require labeling of GM foods sold within that particular state.

Although a 2012 California ballot initiative failed, GM-labeling proponents may succeed in passing legislation in Vermont and Hawaii and a ballot initiative in Washington State. Ultimately, the desire of the anti-GM crowd is to spin a web of state labeling laws that is so cumbersome that the federal government steps in to establish a uniform national labeling requirement. With a labeling requirement, the anti-GM crowd believes that consumers will demand food free of GM ingredients.

One potential roadblock for these state GM-labeling laws is the United States Constitution and the "Dormant" Commerce Clause. Article I, Section 8 of the Constitution provides Congress the authority to regulate commerce "between the several states." Although not explicitly stated in the Constitution, courts have interpreted this grant of federal authority to regulate interstate commerce to also mean that states cannot take actions that unreasonably hinder interstate commerce.

The Dormant Commerce Clause is generally used as a defense against protectionist efforts by states. For example, localities cannot pass laws requiring grocery stores to only sell milk sourced and pasteurized within 5 miles of the city limits (tsk, tsk Wisconsin). The Dormant Commerce Clause can also serve as a defense against state laws that are not necessarily protective, but still place a burden on interstate commerce. These laws are struck down if they place a burden on interstate commerce that outweighs whatever local benefits are provided by the law. For instance, South Dakota cannot pass a law limiting the length of trains that pass through its borders to 80 cars.

There is, however, one exception to the Dormant Commerce Clause – state regulation of health and safety. Federal courts will allow a state law that burdens interstate commerce to stand if the law is intended to protect the health and safety of state residents. For example, a Minnesota law that outlawed the sale of milk in plastic nonreturnable, nonrefillable containers was allowed to stand on the basis that Minnesota had a valid interest in promoting conservation within its borders.

The proposed GM-labeling laws are written with the health and safety exception in mind. Vermont’s GM-labeling bill includes a litany of "legislative findings" that assert why GM-labeling is necessary for the health of Vermont’s residents. Although these assertions are not necessarily based on actual scientific findings, the findings may be sufficient to satisfy the requirements of the health and safety exception.

Vermont and Washington State will likely burden interstate commerce if they require labeling of GM foods. Food companies will be required to separately package and label food based on its destination. This goes against the Founder’s desire for national markets for goods. Nonetheless, GM-labeling supporters may be able to withstand a Dormant Commerce Clause challenge based on the law’s alleged basis in health and safety concerns. This, in turn, will force us that much closer to a national labeling requirement.

[UPDATE 3/22/2013: Yesterday, a Hawaii state senate committee voted to table the bill that would have required GM labeling]

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.